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A curator bonis is a person (usually an attorney or advocate) appointed by the High Court to manage the financial interests and assets of a person who has been declared to be unable to do so. The reason for his/her inability could stem from mental or physical incapacity.

To illustrate: John has been diagnosed with dementia and can no longer manage to take care of his day to day or long-term financial affairs. In such a case it would be appropriate to appoint a curator bonis, who would be tasked with managing John’s financial affairs optimally.

The appointed curator bonis does not have free reign to make decisions regarding John’s financial affairs as he/she pleases, but is limited to those powers which are granted by the Court.

These powers may include:

To sell any property belonging to John;

To carry on or discontinue any business or undertaking of his;

To invest John’s available funds;

To apply any money towards his medical care and maintenance.

The curator bonis, once appointed will also be obliged to provide regular reports and updates to the Master of the High Court and must submit a detailed administration account to the Master at each financial year end, setting out the income received, expenditure incurred etc.

The duties and powers of the curator bonis are therefore monitored by the Master and he/she is also obliged to provide security to the Master, as a guarantee that he/she will execute his/her duties properly. In most cases, an attorney will be appointed as curator bonis, as attorneys are obliged to have Fidelity Fund certificates, which satisfies the Court’s requirement for security.

The process for appointment of a curator bonis can briefly be outlined as follows:

As mentioned, it is an application to the High Court, which application will be supported by an affidavit from the applicant (the person applying to court for the appointment of a curator bonis, for example John’s aged mother, as well as affidavits by two medical practitioners (one of which must be a psychiatrist) who have assessed John’s mental competence and can advise the Court on whether he is incapable of managing his own financial affairs.

Once the curator bonis has been appointed by the Court, he/she will essentially step into John’s shoes in all matters relating to his assets and financial affairs.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

After the Oscar Pistorius saga everyone is wondering about the procedures of a murder trial. In this article we will discuss the right to a fair trial.

In the case of Zanner v Director of Public Prosecutions, Johannesburg (107/05) [2006] ZASCA 56, 2002 (2) SACR 45 (SCA); [2006] 2 All SA 588 (SCA), the factory worker threw a tool at a colleague, which ended fatally. In the statement of the accused he alleged that the tool had slipped from his oily hands when he slung his shoulders in a gesture of irritation. The matter could at first not proceed with trial as the witness was missing. Once she had been found, the trial was set down to be heard. However, the charge was withdrawn as representations had been made on behalf of the accused.

After ten years the case had been reopened as the accused had been charged for killing his wife, which was a direct relation to his previous conviction. The accused relied on Section 35 (3) (d) of the Constitution which states that “every accused person has the right to a fair trial, which include the right to have their trial begin without unreasonable delay”.

In this matter the accused believed that his case would suffer prejudice due to the previous murder trial of ten years ago. Furthermore, Section 38 of the Constitution grants a relevant party the right to approach a competent court on the ground that a right in the Bill of Rights has been infringed or threatened and, depending on the circumstances of each particular case, the court may grant appropriate relief, including a declaration of rights. Trial related prejudice refers to prejudice suffered by an accused mainly because of witnesses becoming unavailable and memories fading as a result of the delay, in consequence whereof such accused may be prejudiced in the conduct of his or her trial[1].

Counsel agreed that the delay in prosecution had to be calculated from the date when the accused was first charged with the offence. The judge did not find in favour of the accused; however, he noted that each case is different and the lengthy delay cannot always be seen as an infringement on a right. The circumstances of the unreasonable delay needed to be investigated.

In this matter the accused’s previous conviction trial had been delayed because the witness was missing, the original docket papers were missing and the representations had been made on behalf of the accused. No issues of restricted freedom, stress, anxiety or social ostracism arose. The judge therefore found that the accused was not denied a right and the appeal was dismissed with costs.

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your attorney for specific and detailed advice. Errors and omissions excepted. (E&OE)

A man runs into an attorney’s office. “What do you charge for three questions?”

“R1 000” replies the attorney. “Is that not a bit steep?” asks the man. “Yes, now what was your third question?”

When you find yourself at an attorney’s office, you’re there because you have a problem. Something has happened or something needs to happen and you need assistance to protect your legal rights. More than likely, this is your last resort.

It is important to realise that working with an attorney comes at a price, sometimes a very high price. Cheaper does not necessarily mean better when it comes to your legal representation. A senior, experienced or specialised attorney will more likely be able to resolve a matter, however complex, easier and possibly quicker.

The indispensable point of departure is that an attorney (or advocate) has one thing to sell to you and that is his or her time.

When browsing for legal services, always ask attorneys to explain their fee and billing structure to you. During your first consultation, get a fee arrangement in writing and remember that the Attorney’s Act states that you are entitled to a detailed itemised bill of costs at all times.

Attorneys are entitled to request a deposit from you to cover the first consultation and initial disbursements. Hereafter, be prepared to be charged for every minute of your attorney’s time spent on your file. Reply to an e-mail? Yes. A phone call? Definitely!

Time is money in this business and you as a client need to understand how you can assist in keeping your legal bill as low as possible:

Your first consultation with your attorney is very important, sometimes, the only consultation you will need to have. Provide clear and concise instructions, keep to the point and be prepared, bring all the necessary documents with you.

At all times when consulting or corresponding with your attorney, keep the communication short and to the point! Every time your attorney has to read a 17 page e-mail dealing with non-essential matters you are paying for that time spent;

Do not arrange consultations with your attorney that are not absolutely necessary, if a query can be clarified over the phone or over e-mail rather follow that route and save time (and money);

By adhering to the points outlined, you should reach a satisfied outcome without surprising legal costs.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).